The legality of the sale is questioned by the plaintiff on the ground that it was not made during the life of the warrant, but after the return day thereof.

By sec. 82 Or. Laws, 766, a warrant for the collection of a delinquent tax is made equivelent to an execution, except as in chapter 57 otherwise provided. By sec. 275 of the Code of C. P. an execucution against property is made returnable within sixty days after its receipt by the sheriff; but by section 290 of the same it is provided that the sheriff may, "for want of purchasers or other sufficient cause," postpone a sale with the consent of the plaintiff in the execution, not exceeding thirty days beyond the day at which the writ is made returnable.'

It appears from the sheriff's return in this case that he received the warrant on May 5th and made the sale thereon 62 days thereafter, on July 6th. The return does not state distinctly when the levy was made, but it is clear that it was made during the life of the warrant, for it appears that upon the receipt of the writ the officer levied upon the property and published a notice of the sale thereof for four weeks before the same took place.

At common law, when an officer has entered upon the execution of a writ, as by making a levy therewith, before the return day thereof, he may sell the property thus levied on at any time thereafter: Wheaton v. Sexton, 4 Whea., 504; Remington v. Linthicum, 14 Pet., 92; Freeman on Ex., sec. 106. But it seems this power is limited in this state by said sec. 290, the effect of which is, in my judgment, to require a sale on execution to be made within the life of the writ, or at most within thirty days after the return day thereof. And this postponement for thirty days can only be made with the consent of the plaintiff, indorsed on the writ and for a cause thereon stated. Whether this provision concerning the postponement of a sale, and requiring the consent of the plaintiff to authorize it, is applicable to a warrant for the collection of a delinquent tax may be doubted. But, if it is, the county as represented by the county court ought to be considered the plaintiff in the writ and give the consent to the postponement. But such postponement can only take place after a day appointed for the sale within the life of the writ and for a cause then ascertained to exist by the officer, which fact ought to be stated in his return. In this case the return does not show that the case was postponed to July 6, but that it was appointed and advertised for that day in the first instance; so that there is no doubt that the sale was made after the life of the warrant and not upon an adjournment from an earlier day within such life, as required by said sec. 290 in case of an execution.

And by sec. 81, Or. Laws, 766, it is provided that within ten days after the first Monday in April the county clerk shall make and deliver to the sheriff "a true and correct list of the taxes returned unpaid, and a correct description of the land or town lots, if the same can be made, and to whom such taxes are charged, * with a writ attached thereto," commanding him to collect the same

*

*

out of the goods and chattels of the delinquent, and if none be found, then to levy "upon the real property, as set forth in said tax list,' and to pay over all moneys so collected by the first Monday in July thereafter. In my judgment, there is in this provision a necessary implication that the warrant for the collection of the tax is not only returnable by the first Monday in July, with the "moneys" made thereon, but that it must be executed before that time by the sale, if need be, of the property mentioned therein or an offer to sell the same at a time and place appointed for that purpose.

By the return in this case it appears that the day of sale-July 6th-was a Friday, from which it is shown that the first Monday in July of that year occurred on the second of the month, and that the sale took place four days after the time prescribed for that purpose by this statute. So that, whether this warrant, as to the time within which a sale could be made in pursuance of a levy under it, is to be considered an execution and subject to section 290 of the code, or controlled by said section 81 of the tax law, it appears that the sale of this property was made after the time limited by law therefor.

It being assumed, as has been said, that the act of 1865 must be construed so as to allow the tax deed to be overcome by showing that there was no sale of the premises, the question arises whether a sale upon a warrant after the time within which it is required to be made is a valid sale. If a sale is actually made upon or in pursuance of the authority of a lawful warrant no mere irregularity in the manner and time of making such sale can be shown to avoid the deed. On the contrary, it is conclusive evidence of the regularity of the sale in all such respects. For instance, it cannot be shown that the sale was without or upon an insufficient notice, or that it was made elsewhere than at the court house door or otherwise than between the hours of ten and four o'clock in the daytime, as prescribed by sec. 93, Or. Laws, 768. But where the sale is made without any authority in the officer for that purpose, as where there is no warrant for the collection of the tax, the fact may be shown to avoid the deed. And taking it for granted that the authority to sell under the warrant of May 6th was gone before July 6th, then the sale in this case was essentially illegal and the deed made in pursuance thereof void.

There is also a question made in the case as to whether there ever was a warrant issued to collect a delinquent tax, "charged to Mary Kelly, and levied upon this "town lot." The warrant is "attached" to the "list" of "unpaid" taxes, and only authorizes the collection of a tax levied on "the lands or town lots" described therein. In the delinquent roll the only property which appears to have been assessed to Mary Kelly is lot three, in block B, in "P. H. Ass'n." With our present knowledge of the subject it may be quite apparent that the letters "P. H." were intended to signify "Portland Homestead," and doubtless they were so intended by the officer who wrote them. But reading them in the light of the proceeding alone, it is

just as reasonable to infer that they stand for Pleasant, Prospect or Plymouth Home or Hollow.

If any weight is to be given in the direction contained in section eighty-one aforesaid, to the effect that the list of unpaid taxes shall contain a "correct description" of the property on which they are levied, it seems that the place in which a town lot is situated ought to be more certainly designated than by the initial letter of its name. And in this connection consideration ought to be given to section thirty-three-Or. Laws, 755-in which it is declared that "it shall be sufficient to describe lands in all proceedings relative to assessing, advertising or selling the same for taxes, by initial letters, abbreviations and figures to designate the township, range, section or part of a section, and also the number of the lots and blocks."

From the character of this provision, and the nature of the subject, there arises, in my judgment, a strong implication that in describing lands for such purpose initial letters shall not be sufficient, otherwise or further than is here expressly permitted.

It is also objected to the warrant that it is illegal because it was not issued and delivered to the sheriff within ten days from the first Monday in April, as required by said section eighty-one. But I think this is a matter of detail, as to time or manner, that the deed does and may conclude inquiry about.

The description of the property in the deed is probably sufficient, notwithstanding the addition of the false particular-"Association" -to the name of the place-" Portland Homestead "-in which the lot is situated. Without this word the designation of the place is correct, and in obedience to the maxim, falsă demonstratio non nocet, it should be disregarded.

But even if this maxim is not applicable here, upon the ground, as some authorities hold, that the deed is not the voluntary conveyance of the lot, and, therefore, no intention could be imputed to him in the premises, Bosworth v. Danzein, 25 Cal. 298, still the deed may be upheld on the maxim, ut res magis valeat quam pereatthe spirit of which, it is said by Shafter, J., in Bosworth v. Danzein, is that nothing should be destroyed merely for the sake of destruction. And acting upon this view of the question, the court in that case held that neither an assessment nor a tax deed is necessarily void because of a false call in the description of the land, unless it was sufficient probably to mislead the owner; and decided that a description in that case, consisting partly of a line commencing at a certain point, and running two hundred feet east, was suffcient, although it contained the further contradictory words, "along Corbett street," because it was manifestly impossible that a line laid in that direction would run along Corbett street. The false particular-" along Corbett street"-was therefore rejected sooner than that which was truly and well said or done should perish.

But on the ground already stated, that the sale of the lot was unauthorized and illegal, because it was made after the time limited by law, I must hold that the deed to Fisher is void.

The finding and judgment of the court will therefore be that the plaintiff is the owner in fee of the premises and entitled to the possession thereof, and that she may recover the same with costs and expenses.

It may be thought that I have given this case more consideration than the amouut at stake on it demands. But my excuse is, if any is needed, the importance of the questions involved in it, the uncertain and confused state of the law on the subject, and the further fact that I am required to construe and apply the revenue laws of the state touching questions that have not yet been passed on by its supreme court.

But while sitting in this federal forum as a judge of the national government, I do not forget that the state is one of the pillars on which rests the fabric of that government; nor that I am a citizen of the former, and have as much interest in her well-being, and respect for her authority, as any who may profess more in this respect.

SUPREME COURT OF COLORADO.

TABOR v. SAMPSON, ET AL.

Filed May 16, 1884

CHATTEL MORTGAGE-UNCERTAINTY IN DESCRIPTION.-A chattel mortgage is void for uncertainty, as against a subsequent attaching creditor of the mortgagor where the property mortgaged is described as a certain number of horses and mules, giving their names and color, without mentioning the place where such animals were kept, or situated, or for what purposes they were used. This is especially so when it appears that the mortgagor has a large number of other animals of the same kind.

CHATTEL MORTGAGE-RECORDING ATTACHING CREDITORS.-Failure to record a chattel mortgage in the county where the property mortgaged, or the greater part thereof, is situated, renders the same inoperative as against a subsequent attaching creditor of the mortgagor, without notice.

ERROR to the district court of Chaffee county. The opinion states. the facts.

A. S. Weston, for the plaintiff in error.

John L. Jerome, for the defendant in error.

STONE, J. One Perley Wasson was the owner of a large number of horses, mules, stage coaches and equipments employed in running several stage lines to and from Leadville, and in October, 1880, for the expressed purpose of securing payment of a promisory note of about $2,000, held by Tabor, the plaintiff in error, said Wasson executed a chattel mortgage to said Tabor of his stock in trade, comprising about seventy head of horses, three head of mules, a large number of stage coaches, wagons, sleighs, buggies, harness, one barn, furniture, and equipments, which chattel mortgage was duly acknowledged, and recorded in the county of Lake. Wasson retained possession of the mortgaged property, and some time in December following, some of the same property, which at. the time was at Buena Vista in the county of Chaffee, was attached.

No. 23-2.

at the suit of certain creditors of Wasson, and the attached property sold by the sheriff of Chaffee county. Sampson one of the defendants in error, was a purchaser at this sale of one span of mules and eight head of horses. A few days after the sale, Wasson took from the stable where they were kept at Buena Vista, the mules and horses which had been purchased by Sampson as aforesaid, and carried them away, whereupon Sampson replevined the same, and Tabor interfered therein claiming the property under his chattel mortgage, the terms of which provided that he was authorized to take immediate possession of the mortgaged property in case the same should be removed from the county of Lake, or be attached by any person, or claimed by any third party.

The controversy, therefore, is whether the right of possession of the last mentioned property is in Tabor by virtue of the mortgage, or in Sampson by virtue of the sheriff's sale.

The case was tried in the court below, by consent of parties, without the intervention of a jury, and a finding and judgment rendered in favor of Sampson for possession of the property in controversy.

Several questions, presented by the assignment of errors, are discussed by counsel in the briefs filed, but the only one we deem it necessary to pass upon in view of the issues made by the plaintiffs below, relates to the sufficiency of the mortgage as against the rights of Sampson as purchaser at the judicial sale.

We think the mortgage insufficient to defeat the rights of the purchaser, for two reasons: uncertainty in description of the property, and the non-recording of such mortgage in the county where the property in question was, and in the possession of the mortgagor at the time it was attached. The only description of mules in the mortgage was "2 mules, bays; 1 mule, dun;" while some of the horses were described singly and in pairs by name only, as for instance: 2 horses, Dock and Gertie; 2 horses, Monkey and Trickle; 2 horses, Bill and Maggie; * * 1 horse, Black Baby; 1 Keno; 1 horse, Bill; 1 horse, Pony; 1 horse, Frank," etc.; but most of the number are mentioned by a lumping enumeration, merely as: "4 horses, brown; 6 horses, mixed; 4 horses mixed; 2 horses, Bud and Jim; 20 horses, mixed; 2 horses, gray," etc.

*

No place was mentioned in the mortgage where any of these animals were kept situate or used or for what purpose used, or that they were used at all, nor was there any other or further description, than such as given in the examples above quoted.

What may properly be regarded as a sufficient description of horses and cattle in an instrumement of conveyance depends to some extent upon circumstances aside from the peculiar description of the animals themselves. For example, if a mortgagor owned but a small number of such animals, and should include in the mortgage all that he owned, stating therein the place or places where they were kept, or the uses in which they were employed a less particular description of each by natural marks or individual characteristics would